DATE: 20061106

DOCKET: C45007

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – SHAUNA TAYLOR (Appellant)

BEFORE:

O’CONNOR A.C.J.O. and ROSENBERG and CRONK JJ.A.

COUNSEL:

Jean D. Buie and Suzan E. Fraser

for the appellant

Tracy Stapleton

for the respondent Crown

Sara Blake

for the respondent Administrator,

Penetanguishene Mental Health Centre

HEARD:

October 30, 2006

On appeal from the disposition order of the Ontario Review Board dated September 14, 2005.

E N D O R S E M E N T

[1] The appellant appeals, on various grounds, the September 14, 2005 disposition order of the Ontario Review Board denying his request for a transfer from the maximum secure Oakridge Division of the Penetanguishene Mental Health Centre (the “hospital”) to a medium secure facility. In our opinion, it is necessary for the disposition of this appeal to address only one of the grounds of appeal advanced by the appellant.

[2] The appellant argues that the Board’s refusal to receive a report prepared by the appellant’s expert, Dr. Ronald Langevin, a forensic psychologist, for the purpose of the September 2005 hearing prevented the Board from conducting the inquiry mandated by s. 672.54 of the Criminal Code, R.S.C. 1985, c. C-46 in respect of the appellant. In the unusual circumstances of this case, we agree.

[3] Section 672.54 of the Code provides:

672.54 Where a court or Review Board makes a disposition pursuant to subsection 672.45(2) or section 672.47, it shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:

(a) where a verdict of not criminally responsible on account of mental disorder has been rendered in respect of the accused and, in the opinion of the court or Review Board, the accused is not a significant threat to the safety of the public, by order, direct that the accused be dis-charged absolutely;

(b) by order, direct that the accused be discharged subject to such conditions as the court or Review Board considers appropriate; or

(c) by order, direct that the accused be detained in custody in a hospital, subject to such conditions as the court or Review Board considers appropriate.

[4] Section 672.54 thus obliged the Board, when fashioning a disposition in respect of the appellant’s transfer request, to consider: (1) the need to protect the public from the appellant, (2) the mental condition of the appellant, (3) the reintegration of the appellant into society, and (4) the appellant’s other needs, for the purpose of arriving at a disposition that was the least onerous and least restrictive to the appellant.

[5] In this case, at a pre-hearing conference held in December 2004 to discuss the appellant’s outstanding annual review, it was determined that time would be afforded to the appellant to permit him to consult with Dr. Langevin for the purpose of obtaining his opinion, in the form of an expert report, to be used at the hearing. The hearing, therefore, was scheduled for April 2005.

[6] When the hearing commenced on April 25, 2005, the appellant’s counsel requested an adjournment in order to obtain Dr. Langevin’s report, which he described as “very, very important” to the appellant’s position. He advised the Board that Dr. Langevin’s report had been delayed due to difficulties in obtaining legally-aided funding to consult with Dr. Langevin. He filed a letter with the Board from Dr. Langevin dated April 23, 2005, in which Dr. Langevin confirmed his willingness to try to work within the 20 hour limit of consultation time approved for funding by the legal aid authorities, and his commitment to have his report prepared by the first week of June, 2005.

[7] The Board granted the adjournment request in part, by determining to hear the first witness for the hospital and to then adjourn the hearing to permit the appellant to obtain the desired expert report. In its reasons in support of its adjournment ruling, the Board stated:

Mr. Doan [counsel for the appellant at the hearing] was then asked what sort of a report he anticipated receiving from the doctor. He replied that in his opinion the report would be a favourable one and would support his client’s position; again, that the examination and the report were essential to his client’s case.

He was then asked what matter or matters, if any, were not in issue at this hearing. He indicated that everything was in issue, that is to say, the question of significant risk was as much in issue as was the question related to least onerous and least restrictive disposition; that such being the case he repeated that the report of Doctor Langevin was essential to his case.

We recessed to consider whether or not to grant the request for adjournment either in whole or in part. We came to the unanimous conclusion that, given all of the circumstances, to deny the request for adjournment in it’s [sic] entirety would be grossly unfair to the accused. Her psychologist had made a firm commitment; the delay would be minimal given when it would be that his report would be available, and the report was essential to her position on both issues of concern. We were of the further unanimous view, however, that it would be more appropriate to hear whatever evidence the hospital and the Crown wished to call, and especially the evidence of Doctor Hucker, and then adjourn the balance of the hearing for conclusion when the Langevin report was made available.

[8] As appears from these comments, counsel for the appellant indicated to the Board that he anticipated that Dr. Langevin’s report would be “favourable” to the appellant and that the report would relate to two core matters in dispute: first, the question of the risk posed by the appellant and second, the question of what would constitute the least onerous and least restrictive disposition for the appellant.

[9] Both of these issues were mandatory components of the inquiry that the Board was required to undertake pursuant to s. 672.54 of the Code. The Board expressly held that Dr. Langevin’s report was “essential” to the appellant’s position on these issues.

[10] Ultimately, the hearing was adjourned on consent of all parties after hearing part of the evidence of one witness, to recommence on September 12, 2005. We note that, although the members of the Board were available to reconvene in June 2005, the hospital’s medical witnesses were not available then.

[11] When the hearing resumed on September 12, 2005, first the appellant and then his counsel sought to file Dr. Langevin’s report with the Board. The Board, by then newly constituted, declined to receive or consider the report because it had not been produced in a timely fashion in accordance with the Board’s rules of procedure. The appellant’s counsel, however, had explained to the Board that the delay in furnishing the report was again occasioned by funding difficulties experienced with the legal aid authorities.

[12] In the result, the appellant was deprived of the opportunity to present his expert evidence on two key factors that the Board was obliged to consider under s. 672.54 of the Code. Nor did the Board have the benefit of this evidence when crafting a disposition in accordance with its statutorily mandated task under s. 672.54. As we have said, this was evidence that the Board, differently constituted, had earlier ruled was “essential” to the appellant’s position on these issues and, hence, apparently relevant to the Board’s deliberations.

[13] On September 14, 2005, the Board made the disposition order now under appeal.

[14] We are sympathetic to the Board’s need to ensure adherence by all parties to its rules of procedure in order to facilitate the orderly and fair conduct of Board hearings. However, on this record, we conclude that the Board’s failure to accommodate, in some appropriate fashion, the appellant’s efforts to tender Dr. Langevin’s report was an error. Such accommodation was clearly possible under the Board’s rules.

[15] The fact that the appellant could have sought to tender such evidence at a subsequent annual review hearing, or at an earlier future hearing convened at his request in the discretion of the Board, does not detract from the importance of this evidence to the Board’s inquiry at the appellant’s 2005 annual review hearing. Nor does the possibility that the Board, upon consideration of Dr. Langevin’s evidence, ultimately might reject his opinion, or otherwise discount his evidence, displace the significance of the report at the September 2005 hearing.

[16] Under the Code and the Board’s own rules, the Board’s hearings are designed to be informal and inquisitorial in nature to ensure that the Board is positioned to consider all available and admissible information bearing upon the factors set out in s. 672.54. Dr. Langevin’s report was both available and relevant. On the Board’s own findings, it was critical to the appellant’s position on the central issues in dispute including, importantly, the risk assessment to be conducted by the Board regarding the appellant. In the circumstances, therefore, the Board’s disposition cannot stand.

[17] The appellant’s 2006 annual review hearing is now overdue. It has been postponed, apparently on consent of the parties, pending the outcome of this appeal. We would expect, therefore, that the 2006 review hearing will be convened promptly to consider the appellant’s present circumstances and that the appellant will be permitted at that hearing, if so advised, to tender Dr. Langevin’s evidence.

[18] For the reasons given, the appeal is allowed and the disposition order of the Board dated September 14, 2005 is set aside.

“Dennis O’Connor A.C.J.O.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”